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Unlawful combatant

From Academic Kids

Unlawful combatant (also illegal combatant or unprivileged combatant) describes a person who engages in combat without fulfilling the conditions that confer lawful combatant status according to the laws of war.

The "Detaining Power" may choose to accord detained unlawful combatants the rights of prisoners of war as described in the Third Geneva Convention (GCIII), but is not required to do so. Unlawful combatants may retain rights under the Fourth Geneva Convention in that they must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial".

The phrase "unlawful combatant" does not appear in GCIII; nor does the word "combatant." However, Article 4 of GCIII does describe categories of persons who are entitled to prisoner of war status. "Prisoner of war" is generally synonymous with "detained lawful combatant." If there is doubt about whether persons have fulfilled the conditions that confer prisoner of war status, Article 5 of the GCIII states that their status may be determined by a competent tribunal.

International law and practice

The term has been around for at least 100 years and has been used in legal literature, military manuals and case law. However unlike the terms "combatant" "prisoner of war" and "civilian" the term "unlawful combatant", or similar, is not mentioned in either the Hague or the Geneva Conventions. So while the former terms are well understood and clear under international law, the term "unlawful combatant" is not.

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews [of civil ships and aircraft], who do not benefit by more favourable treatment under any other provisions of international law.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

1. Persons belonging, or having belonged, to the armed forces of the occupied country...

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Article 5

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Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

These terms thus divide people in a war zone into two classes. Those in armies and militias and the like (lawful combatants), and then those who are not. Those in armies and militias and the like have the right to be treated as prisoners of war upon capture and those not in armies and militias do not have the right to be treated as prisoners of war upon capture.

The critical distinction is that a "lawful combatant" (defined above) cannot be held personally responsible for acts prosecuting that combat, unless they commit war crimes or crimes against humanity. And if captured, they have to be treated as prisoners of war - basically they can be detained (more humane than killing them), but must be provided for, treated with respect, and so on.

If there is any doubt about whether an alleged combatant is a "lawful combatant" then they must be held as a Prisoner of War until their status has been determined by "a competent tribunal". If that tribunal rules that the combatant is an "unlawful combatant" then their status changes to that of a civilian which may give them some rights under Fourth Geneva Convention.

Article 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.

If they fulfil the criteria they are a 'protected person' and are entitled to all the protections mentioned in GCIV. It should be emphasised that a national of neutral state, with normal diplomatic representation, in a war zone is not a protected person under GCIV.

But what of a combatant who does not qualify for POW status? If they qualify as a 'protected person' they get all the rights which a non-combatant civilian gets under GCIV but the Party to the conflict may invoke Articles of GCIV to curtail those rights. The relevant Articles are Article 5 and Article 42.

Part I. General Provisions

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Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

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Section II. Aliens in the territory of a party to the conflict

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Art. 42. The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

It is likely that if they have been found to be "unlawful combatant" by "a competent tribunal" under GCIII Article 5 and they are a protected person under GCIV, that the Party to the conflict will invoke GCIV Article 5. In which case the "unlawful combatant" does not have the "rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State". They do however retain the right "to be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention."

If after "fair and regular trial" they are found guilty of a crime then the "unlawful combatant" can be punished by whatever lawful methods are available to the Party to the conflict.

If the Party does not use Article 5 the Party may invoke Article 42 of GCIV and use "internment" to detain the "unlawful combatant".

Persons who are not prisoners of war in an internal conflict

Civilians are covered by GCIV Article 3:

1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

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(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

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An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

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But what of a combatant who does not qualify for POW status? Then they can expect to be treated humanely and before they are punished they can expect to get a trial in "a regularly constituted court".

The last time that American and British unlawful combatants were executed after "a regularly constituted court" was the Mercenary trial in Luanda, Angola in June, 1976.

Domestic law

United States

The term has been around for at least 100 years and has been used in legal literature, military manuals and case law. It was introduced into US domestic law in 1942 by a United States Supreme Court decision in the case ex parte Quirin. In this case, the Supreme Court upheld the jurisdiction of a U.S. military tribunal over the trial of several German saboteurs in the US. This decision states (emphasis added and footnotes removed):

"...the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."

The Supreme court ruling on the Quirin case was over sixty years ago; since then the United States has signed and ratified the 1949 Geneva Conventions, which are, therefore, considered to be a part of US domestic law. The court cases which are currently grinding their way through the US judicial system should clarify the US domestic legal position and its precived international treaty obligations.

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.[1] (http://lessonplancentral.comwww.academickids.com/encyclopedia/index.php/Unlawful_combatant#fn_AUMF)

Using the authorization granted to him by Congress, on November 13, 2001, President Bush issued a Presidential Military Order: "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism"[2] (http://lessonplancentral.comwww.academickids.com/encyclopedia/index.php/Unlawful_combatant#fn_MilitaryOrder) which allowed "individuals ... to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals", where such individuals are a member of the organization known as al Qaida; or has conspired or committed acts of international terrorism, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy. The order also specifies that the detainees are to be treated humanely.
The length of time for which a detention of such individuals can continue before being tried by a military tribunal is not specified in the military order. The U.S. administration describes the detainees held under the military order as "Illegal enemy combatants".

With the U.S. invasion of Afghanistan some lawyers in the Justice Department's Office of Legal Aid and in the office of White House counsel Alberto Gonzales advised President Bush that terrorists have not fulfilled the conditions that would entitle them to prisoner of war status. This applied not only to members of Al Queda but the entire Taliban, because, they argued, Afghanistan was a "failed state".
The Bush administration thenceforth maintained that individuals captured in Afghanistan under the military order are not necessarily entitled to prisoner of war status. U.S. officials, such as Vice President Dick Cheney, argue that even U.S. citizens may be detained as unlawful combatants due to the urgency of the post-9/11 environment.

Most of the individuals, detained by the U.S. military on the orders of the U.S. administration were initially captured in Afghanistan. The foreign detainees, are held Camp X-Ray at Guantanamo Bay on Cuba. Guantanamo Bay was chosen because although it is under the de facto control of the United States administration, it is not a sovereign territory of the United States and a previous Supreme Court ruling Johnson v. Eisentrager in 1950 had ruled that U.S. courts had no jurisdiction over enemy aliens held outside the USA.

There have been a number of domestic legal challenges made on behalf of the detainees held in Camp X-Ray and in other places. These include:

On June 28, 2004, the Supreme Court ruled in Rasul_v._Bush that detainees in Camp X-Ray could turn to U.S. courts to challenge their confinement, but can also be held without charges or trial.

On July 7, 2004, In response to the Supreme Court ruling, the Pentagon announced that cases would be reviewed by military tribunals, in compliance with Article 5 of the Third Geneva Convention.[3] (http://lessonplancentral.comwww.academickids.com/encyclopedia/index.php/Unlawful_combatant#fn_BBC)

On November 8, 2004, a federal court halted the proceeding of Salim Ahmed Hamdan, 34, of Yemen. Hamdan was to be the first Guantanamo detainee tried before a military commission. Judge James Robertson of the U.S. District Court for the District of Columbia ruled in Hamden v. Rumsfeld[4] (http://lessonplancentral.comwww.academickids.com/encyclopedia/index.php/Unlawful_combatant#fn_HvR) that no competent tribunal had found that Hamdan was not a prisoner of war under the Geneva Conventions.

Yaser Hamdi was captured in Afghanistan in 2001. He was taken to Camp X-Ray at Guantanamo Bay, Cuba, but was transferred to jails in Virginia and South Carolina after it became known that he was a U.S. citizen. On September 23, 2004, the United States Justice Department agreed to release Hamdi to Saudi Arabia, where he is also a citizen, on the condition that he gave up his U.S. citizenship. The deal also bars Hamdi from visiting certain countries and to inform Saudi officials if he plans to leave the kingdom. He was a party to a Supreme Court decision Hamdi v. Rumsfeld which issued a decision on June 28, 2004, repudiating the U.S. government's unilateral assertion of executive authority to suspend the constitutional protections of individual liberty of a U.S. citizen.

On May 8, 2002, José Padilla, also known as Abdullah al-Muhajir, was arrested by FBI agents at Chicago'sO'Hare International Airport and held as material witness on the warrant issued in New York State about the 2001 9/11 attacks. On June 9, 2002 President Bush issued an order to Secretary Rumsfeld to detain Padilla as an "enemy combatant". The order legally justified the detention by leaning on the AUMF which authorized the President to "..use all necessary force against those nations, organizations, or persons..." and in the opinion of the administration a U.S. citizen can be an enemy combatant (This was decided by the United States Supreme Court in the case of Ex Parte Quirin)[5] (http://lessonplancentral.comwww.academickids.com/encyclopedia/index.php/Unlawful_combatant#fn_syr1). Padilla is currently being detained without charge in South Carolina and is accused by the Bush Administration of being an illegal enemy combatant and a nuclear terrorist planning to set off a dirty bomb.

The November 13, 2001, Military Order, mentioned above, exempts U.S. citizens from trial by military tribunals to determine if they are "unlawful combatants", which indicates that Padilla and Yaser Hamdi would end up in the civilian criminal justice system, as happened with John Walker Lindh.

On December 18, 2003, the U.S. Second Circuit Court of Appeals declared that the Bush Administration lacked the authority to detain a U.S. citizen arrested on U.S. soil as an "illegal enemy combatant" without clear congressional authorization (per 18 U.S.C. § 4001(a)); it consequently ordered the government to release Padilla from military custody within thirty days[6] (http://lessonplancentral.comwww.academickids.com/encyclopedia/index.php/Unlawful_combatant#fn_reuters1). But agreed that he could be held until an appeal was heard.

On February 20, 2004, the Supreme Court agreed to hear the government's appeal.

The Supreme Court heard the case, Rumsfeld v. Padilla, in April 2004, but on June 28 it was thrown out on a technicality. The court declared that New York State, where the case was originally filed, was an improper venue and that the case should have been filled in South Carolina, where Padilla was being held.

On February 28, 2005, in Spartanburg, South Carolina, U.S. District Judge Henry Floyd ordered the Bush administration to either charge Padilla or release him[7] (http://lessonplancentral.comwww.academickids.com/encyclopedia/index.php/Unlawful_combatant#fn_NYT-01-03-2005). He relied on the Supreme Court's ruling in the parallel enemy combatant case of Yaser Hamdi (Hamdi v. Rumsfeld), in which the majority decision declared a "state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

Other countries

Criticism

The purported legal status of "unlawful combatants" in those nations currently holding detainees under that name, has been the subject of criticism by other nations and international human rights institutions; including Human Rights Watch and the International Committee of the Red Cross. In response to the US-led military campaign in Afghanistan, a legal advisor at the Legal Division of the ICRC, published a paper on the subject[8] (http://lessonplancentral.comwww.academickids.com/encyclopedia/index.php/Unlawful_combatant#fn_ICRC) (which reflects the views of the author alone and not necessarily those of the ICRC), in which it states:

Whereas the terms "combatant" "prisoner of war" and "civilian" are generally used and defined in the treaties of international humanitarian law, the terms "unlawful combatant", "unprivileged combatants/belligerents" do not appear in them. They have, however, been frequently used at least since the beginning of the last century in legal literature, military manuals and case law. The connotations given to these terms and their consequences for the applicable protection regime are not always very clear.

In the US the term unlawful combatant, critics maintain, has mainly been used to deny detainees basic civil rights, such as the right to a counsellor, a speedy trial and right of appeal. It has been argued that this gives governments a right to arbitrarily suspend the rule of law in a way that should not be accepted.

Some governments whose nationals have been detained with this status, notably Canada, the UK, and Sweden, have intervened to limit the degree to which the rights of their nationals have been suspended. In general this has been handled on a case-by-case basis as numbers are few.

Many governments and human rights organizations worry that the introduction of the unlawful combatant status sets a dangerous precedent for other regimes to follow. When the government of Liberia detained American activist Hassan Bility in 2002, Liberian authorities dismissed the complaints[9] (http://lessonplancentral.comwww.academickids.com/encyclopedia/index.php/Unlawful_combatant#fn_Liberia) of the United States, responding that he had been detained as an unlawful combatant.

Template:AnbHamden v. Rumsfeldsummary (http://jurist.law.pitt.edu/gazette/2004/11/ruling-on-lawfulness-of-guantanamo.php), full txt (PDF File) (http://www.dcd.uscourts.gov/04-1519.pdf) – U.S. District Court for the District of Columbia, presiding Judge James Robertson